The Confusion Surrounding the F.B.I.’s Renewed Investigation of Brett Kavanaugh

Some who say that they have information relevant to the F.B.I.’s investigation of Brett Kavanaugh, President Trump’s Supreme Court nominee, are suspicious that the investigation will amount to a “whitewash.”

Photograph by T.J. Kirkpatrick / NYT / Redux

As the F.B.I. began its investigation this weekend into allegations of sexual misconduct by Brett Kavanaugh, President Trump’s Supreme Court nominee, several people who hope to contribute information about him to the F.B.I. said that they were unable to make contact with agents. President Trump has promised to give the F.B.I. “free rein” in its probe, but the Times reported on Saturday that the White House had asked the F.B.I. to question only four witnesses. In the course of the next day, confusion spread about whom the F.B.I. would be interviewing, and Senate Democrats demanded that the White House provide the Senate Judiciary Committee with a copy of the written directive that it had sent to the F.B.I. regarding the investigation.

With a one-week deadline looming over the investigation, some who say they have information relevant to the F.B.I.’s probe are suspicious that the investigation will amount to what one of Kavanaugh’s former Yale classmates called a “whitewash.” Roberta Kaplan, an attorney representing one potential witness, Elizabeth Rasor, a former girlfriend of Kavanaugh’s high-school friend Mark Judge, said her client “has repeatedly made clear to the Senate Judiciary Committee and to the F.B.I. that she would like the opportunity to speak to them.” But, Kaplan said, “We’ve received no substantive response.”

Christine Blasey Ford has accused Judge of being an accessory to Kavanaugh’s alleged sexual assault on her, in 1982, when they were all in high school. Kavanaugh has vehemently denied any role in the assault, and Judge, through his attorney, Barbara Van Gelder, also has denied any recollection of it. Kaplan said that early this past week she began reaching out to the F.B.I. and to the Senate Judiciary Committee on Rasor’s behalf. “She feels a sense of civic duty to tell what she knows,” Kaplan said. “But the only response we’ve gotten are e-mails saying that our e-mails have been ‘received.’ ” At one point, she said, an F.B.I. official suggested she try calling an 800-number telephone tip line.

Debra Katz, the lead attorney for Ford, said that her client, too, had been willing to coöperate with the F.B.I.’s investigation, but as of Sunday the F.B.I. had not contacted her, despite Ford’s central role in the controversy. “We’ve tried repeatedly to speak with the F.B.I, but heard nothing back,” Katz said.

F.B.I. officials referred questions to the White House. The White House spokesman Raj Shah defended the process, and released a statement that placed responsibility for any limitations on the Senate. “The scope and duration has been set by the Senate. The White House is letting the FBI agents do what they are trained to do,” his statement said. Shah accused Senate Democrats of merely wanting to “further delay and politicize” the investigation rather than being genuinely concerned about its integrity.

Rasor dated Judge on and off for two to three years while they were students at Catholic University, and she is now a public-school teacher in New York. After hearing Judge’s denials, Rasor came forward, offering to give a sworn statement to the F.B.I. challenging Judge’s credibility. According to Kaplan, the F.B.I. has so far shown no interest in hearing what Rasor has to say, and efforts to contact the Bureau have gone nowhere.

A Yale classmate attempting to corroborate Deborah Ramirez’s account that, during her freshman year at Yale, Kavanaugh thrust his penis in her face at a drunken party, said that he, too, has struggled unsuccessfully to reach the F.B.I. The classmate, who asked to remain anonymous, recalled hearing about Ramirez’s allegation either the night it happened or during the following two days. The classmate said that he was “one-hundred-per-cent certain” that he had heard an account that was practically identical to Ramirez’s, thirty-five years ago, but the two had never spoken about it. He had hoped to convey this to the F.B.I., but, when he reached out to a Bureau official in Washington, D.C., he was told to contact the F.B.I. field office nearest his home. When he tried that, he was referred to a recording. After several attempts to reach a live person at the field office, he finally reached an official who he said had no idea what he was talking about. At this point, he went back to the official at the F.B.I.’s D.C. headquarters, who then referred him, too, to an 800-number tip line. (He eventually left a tip through an online portal.)

“I thought it was going to be an investigation,” the Yale classmate said, “but instead it seems it’s just an alibi for Republicans to vote for Kavanaugh.” He said that he had been in touch with other classmates who also wanted to provide information corroborating Ramirez’s account, but that they had not done so.

On Sunday, a second Yale classmate, Charles Ludington, released a statement accusing Kavanaugh of blatantly mischaracterizing his college drinking during his testimony before the Senate Judiciary Committee last week. Ludington said that Kavanaugh often grew “belligerent and aggressive” when drunk, and that he had planned to share his information with the F.B.I. “I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth,” Ludington wrote. “I felt it was my civic duty to tell of my experience while drinking with Brett, and I offer this statement to the press. I have no desire to speak further publicly, and nothing more to say to the press at this time. I will however, take my information to the F.B.I.” The Times reported that Ludington, a professor at North Carolina State University, said that the F.B.I.’s D.C. field office had told him to go to the Bureau’s Raleigh, North Carolina, field office on Monday if he wished to speak with agents. Ludington said that he intended to do so and “tell the full details of my story.” A lawyer representing Kavanaugh did not respond to a request for comment about Ludington’s statement.

According to the Times, the four witnesses approved by the White House for interviews by the F.B.I. are Judge; P. J. Smyth, another high-school friend of Kavanaugh’s; Leland Keyser, a high-school friend of Ford’s; and Ramirez. (Lawyers for Smyth and Keyser have issued statements saying that their clients will coöoperate with the investigation, though Keyser’s told CBS that she will tell the F.B.I. that she does not know Kavanaugh or remember the party where Ford’s alleged assault took place. Keyser has also stressed, however, that she believes Ford and does not refute her testimony.)

Leah Litman, an assistant professor of law at the University of California, Irvine, said the severe restrictions on the scope of the investigation made it “a joke.” She asked, “What kind of an investigation into an assault that happened under the influence of alcohol doesn’t include investigating the accused’s use of alcohol?” She said, “Usually, the F.B.I. investigators aren’t told who to call and who not to.” She said that Rasor should be interviewed, given her past relationship with Judge. “If Mark Judge is on the ‘approved’ list of witnesses, and they are interviewing him, there is no reason not to interview Rasor, who has testimony that is very relevant to his credibility, and the testimony that he would offer,” she said.

As The New Yorkerpreviously reported, Rasor said that she felt morally obligated to challenge Judge’s description of his and Kavanaugh’s high-school sex lives as innocent. She said that, “under normal circumstances, I wouldn’t reveal information that was told in confidence,” but, she said, “I can’t stand by and watch him lie.” She recounted that Judge had told her ashamedly of an incident that involved him and other boys taking turns having sex with the same drunk woman. Rasor said that Judge seemed to regard it as fully consensual. She said that Judge did not name others involved in the incident, and that she had no knowledge about whether Kavanaugh participated. (Van Gelder, Judge’s attorney, said that he “categorically” denied the account related by Rasor, and Kavanaugh, during last week’s hearings, scoffed at the notion that he had ever participated in or been present during any incident of gang sex.)

While Rasor’s allegations appeared to be unexamined by the F.B.I., CNN reported that Ramirez had spoken with F.B.I. agents on Sunday and provided them with the names of potential witnesses. It was not clear whether the F.B.I. would be interviewing the witnesses. Over the weekend, Senate Republicans and White House officials argued that the F.B.I. is simply following the usual protocol for background investigations, which are far less rigorous than criminal investigations. In an interview with CNN, the Presidential counsellor Kellyanne Conway said, “It will be limited in scope; it’s meant to last one week. . . . It’s not meant to be a fishing investigation.” She denied reports that the White House counsel, Don McGahn, who has shepherded Kavanaugh’s nomination, was micromanaging the process, saying, “I don’t think Don McGahn would do that, but I’ve not talked to him about it.”

However, Democratic officials with experience overseeing F.B.I. background investigations disputed that there was anything procedurally routine thus far in the F.B.I.’s renewed investigation into Kavanaugh. Robert Bauer, who served as the White House counsel to President Obama, said that he had overseen numerous F.B.I. background investigations and never seen one so circumscribed. “The F.B.I. should have the latitude to determine what is necessary in a credible, professional inquiry,” he said. “The issue on the table is, Did he or didn’t he engage in the conduct that Dr. Ford alleged?” To reach the answer, he said, “The F.B.I. needs to utilize its expertise to investigate. But instead the White House has dictated a restricted investigative plan. So it’s contaminated at the core.”